MARVEL RODRIGUEZ, APPELLANT,
v.
THERMAL DYNAMICS, INC., ET AL., APPELLEES
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Marvel Rodriguez appealed the dismissal of his products liability action for lack of prosecution and discovery violations. The court reversed the dismissal, holding that the trial court failed to issue required written findings of willful or deliberate violation of discovery orders, and that even if such findings existed, the single violation did not constitute willful disregard given the attorney's serious illness.
The trial court's dismissal was improper because it failed to issue express written findings of willful or deliberate violation of discovery orders, which is required before dismissing for noncompliance with discovery. Additionally, even assuming such findings had been made, the single violation of the agreed deposition order did not constitute willful and deliberate disregard under the circumstances, particularly given the attorney's serious illness.
[1] A trial court must issue an express written finding of willful or deliberate violation of a court's discovery order(s) before dismissing a cause for noncompliance with di…
[2] A violation of a court order, when occurring in light of an attorney's serious illness, may not constitute a willful and deliberate violation warranting dismissal.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“in order to dismiss a cause for noncompliance with discovery, a trial judge must issue an express written finding of willful or deliberate violation of a court's discovery order(s)”
Establishes the mandatory procedural requirement for dismissal based on discovery violations
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Join FLexlaw to unlock all legal intelligenceRodriguez filed a products liability action against Thermal Dynamics under attorney guidance. Two years after his injuries, a successor attorney took …
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PER CURIAM.
Marvel Rodriguez appeals the final order dismissing his complaint for lack of prosecution. We reverse and remand. Under the guidance of an attorney, Rodriguez filed a products liability action against Thermal Dynamics. Two years subsequent to the incident causing Rodriguez’ injuries, a successor attorney appeared on Rodriguez’ behalf. That attorney admittedly and undisputedly took only the minimal necessary steps under Florida Rule of Civil Procedure 1.420(e) to keep the action pending and avoid dismissal.
Thermal Dynamics sent two deposition notices and the court issued one agreed order for the taking of depositions. Rodriguez did not appear on any of the three dates. During that time, Rodriguez’ attorney was recovering from a serious heart illness, which had hospitalized him for several months. On the date Rodriguez violated the only agreed court order for the taking of depositions, Thermal Dynamics filed a motion to dismiss based on Rodriguez’ inattention to the case for over three years and the discovery violations. The court granted the motion; however, no written findings of willful or deliberate disregard of court orders accompanied the dismissal.
First, in order to dismiss a cause for noncompliance with discovery, a trial judge must issue an express written finding of willful or deliberate violation of a court’s discovery order(s). Commonwealth Fed. Sav. and Loan Ass’n v. Tubero, 569 So. 2d 1271, 1273 (Fla.1990); Rose v. Clinton, 575 So. 2d 751, 752 (Fla. 3d DCA 1991); Nob Hill at Welleby, Ltd. v. Resolution Trust Corp., 573 So. 2d 952 (Fla. 4th DCA 1991); CDR Mktg., Inc. v. Chopin, 573 So. 2d 450, 451 (Fla. 4th DCA 1991); Urbanek v. R.D. Schmaltz, Inc., 573 So. 2d 107, 108-9 (Fla. 4th DCA 1991).
Second, in the instant case, assuming arguendo that the trial court’s order had contained an express written finding of willful or deliberate disregard, dismissal would have nonetheless been improper. The violation of the one agreed court order, in light of the attorney’s illness, did not constitute a willful and deliberate violation under Tubero.
The trial court’s order of dismissal was obviously entered in the exercise of its inherent authority to manage and control its docket. We respect that right and duty, and observe that in the event of future substantial derelictions by Rodriguez or his counsel to thwart or prevent the progression of this case, the trial court will be authorized to exercise its inherent authority to dismiss the action. Should such an eventuality occur, the trial court will be empowered to look at all of the factors and circumstances of previous derelictions from the commencement of the action through the date of the action or non-action which fails to move this case toward resolution.
Accordingly, the trial court’s order is reversed and the cause remanded for further proceedings consistent with this opinion.
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Cyril Hanna v. Indus. Labor Serv., Inc., 636 So. 2d 773 (Fla. 1st DCA 1994)…ssal with prejudice. We agree that the order must be reversed, as we cannot determine either from the hearing transcript or the order what specific facts or legal grounds served as the basis of the JCC’s ruling. Rodriguez v. Thermal Dynamics, Inc., 582 So. 2d 805 (Fla. 3d DCA 1991); Iafornaro v. Charter Builders, 557 So. 2d 898 (Fla. 1st DCA 1990); Grieco v. Lehigh Corp., 549 So. 2d 748 (Fla. 1st DCA 1989) (assuming JCC’s order of dismissal was a denial of the claim on the merits, the order constituted rever…
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Arango v. Alvarez, 585 So. 2d 1131 (Fla. 3d DCA 1991)…edure, Thomas v. Pridgen, 549 So. 2d 1195, 1196 (Fla. 1st DCA 1989), there is no evidence that the Arangos’ failure to appear at calendar call was an effort to “thwart or prevent the progression of this case....” Rodriguez v. Thermal Dynamics, Inc., 582 So. 2d 805 (Fla. 3d DCA 1991). The Arangos’ discovery violations have no relevance to the issue before us. The record reveals that the trial court entered one order compelling discovery, namely, it required the Arangos to appear at a deposition. The Arangos d…
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Pompey v. Broward Cnty. & Jack Osterholt, 95 F.3d 1543 (11th Cir. 1996)…ce is sufficient to hold a parent in contempt as well as to determine how much time to spend on each case, see, e.g., Fla.Stat.Ann. § 61.14(5) (West 1988 & Supp.1996); Fla.R.Jud.Admin., Rule 2.050(b) (West 1996); Rodriguez v. Thermal Dynamics, Inc., 582 So. 2d 805 (Fla. 3d DCA 1991), the plaintiffs fail to state a claim against the Support Division and Ms. Fink based upon those allegations. For those reasons, we also hold that the plaintiffs’ claim against Broward County stemming from its “tolerance” of the a…
Authorities Cited
- Commonwealth Fed. Sav. & Loan Ass'n v. Moshe Tubero, 569 So. 2d 1271 (Fla. 1990)
- NOB Hill AT Welleby, Ltd. v. The Resolution Tr. Corp., 573 So. 2d 952 (Fla. 4th DCA 1991)
- Urbanek v. R.D. Schmaltz, Inc., 573 So. 2d 107 (Fla. 4th DCA 1991)
- Rose v. Clinton, 575 So. 2d 751 (Fla. 3d DCA 1991)
- Klibe v. State, 573 So. 2d 450 (Fla. 4th DCA 1991)